The Wisconsin Supreme Court and Korematsu

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In a decision that surprised no one, Wisconsin’s activist Supreme Court rewrote state law in order to throw out Governor Tony Evers’ stay-at-home order. Only one of the Court’s so-called conservatives, Brian Hagedorn, was willing to read the plain text of the statutes at issue to reach the obvious conclusion that the governor and health secretary designee Andrea Palm acted lawfully. In a striking rebuke of the judges he sides with almost 100 percent of the time, Hagedorn wrote:

The rule of law, and therefore the true liberty of the people, is threatened no less by a tyrannical judiciary than by a tyrannical executive or legislature. (bold added).

In a surprising dissent given that he usually votes with the right wing majority, Justice Brian Hagedorn warned of the dangers of a “tyrannical judiciary.” In respecting the plain language of the disputed statute language, his was the only truly conservative opinion issued by the so-called conservatives.

The full text of the court’s majority opinion and dissents can be found here.

There’s much to be bothered by in the majority opinion, including the fact that the thirty-plus pages of it seem tone-deaf to the scale of the public health emergency that led to the stay-at-home order in the first place. (Maybe this was to be expected, as Chief Justice Roggensack apparently doesn’t see all the victims of the disease as “regular folks.”).

These judges get to pontificate freely on the technical legal distinctions between “rule” and “order” from the safety of their homes without any appreciation at all that the freedom they are sentencing many workers to is the “freedom” to serve patrons in establishments with mostly voluntary rules for masking, social distancing, and sanitizing. No doubt that workers uncomfortable with risking their lives to go back to work will be put in a position of losing unemployment benefits if they refuse to do so. That’s the kind of “freedom” that comes straight out of Orwell’s 1984.

More outrageous to me is the Court’s invoking of the World War II era Korematsu decision as a way of branding themselves as guardians of liberty during a crisis. Fred Korematsu was 23-years-old when the FDR administration invoked an executive order placing Japanese-Americans in “relocation centers.” Korematsu refused to submit, and his case ended up making its way all the way to the Supreme Court of the United States. Korematsu became a life long civil rights activist, eventually earning the Presidential Medal of Freedom in 1998.

Fred Korematsu in the 1940s. Wisconsin Supreme Court Justice Rebecca Bradley tried to equate FDR’s incarceration of Japanese-Americans during World War II with Governor Evers and Secretary designee Palm issuing stay-at-home orders.

In a disgraceful 1944 decision, the Supreme Court ruled against Korematsu in a 6-3 vote. Justice Robert Jackson’s dissent exposed the racism at the root of the order and the decision: “the Court for all time has validated the principle of racial discrimination … The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

Think about the sheer absurdity of comparing a presidential order targeting a racial group during wartime with a governor and health secretary following CDC guidelines to save lives during a pandemic. Mentioning the two crises in the same breath is especially specious given the fact that racial minorities in Wisconsin are suffering disproportionately from Covid-19, and so lifting stay-at-home orders actually makes their plight worse.

In both the Zoom conference and her written opinion, Justice Rebecca Bradley invoked the Korematsu case to make the claim that the governor’s stay-at-home order represents executive over reach.

Forced to acknowledge the inappropriateness of the analogy, Justice Bradley found a spin that probably wouldn’t get a passing grade in a first-year law school exam:

Although headlines may sensationalize the invocation of cases such as Korematsu, the point of citing them is not to draw comparisons between the circumstances of people horrifically interned by their government during a war and those of people subjected to isolation orders during a pandemic. We mention cases like Korematsu in order to test the limits of government authority, to remind the state that urging courts to approve the exercise of extraordinary power during times of emergency may lead to extraordinary abuses of its citizens.

So Justice Bradley and her partners in judicial spin doctoring would have us believe that they really do see the actions of President Roosevelt and Governor Evers as similar forms of executive branch overreach. Here are my questions:

Does anyone really think that these four partisan hack judges, had they been on the United States Supreme Court in 1944, would have sided with Fred Korematsu? Seriously?

Does anyone really think that judges who raise big money and get elected in part due to the influence of well financed lobbying organizations like Wisconsin Manufacturers and Commerce, Americans For Prosperity, and the Wisconsin Tavern League–all of whom filed amicus briefs in this case that just coincidentally reached the same conclusions as the four judges–are objective arbiters of the law?

If you answered “yes” to any of those questions, then I’ve got a Clorox cocktail treatment for your virus symptoms to sell you. The only real shock in this case is that Judge Hagedorn was able to stand against the BS, bluster, and bullying. Kudos to him for that.

The sad reality is that Wisconsin Legislature v. Palm demonstrates, once again and painfully, how in Wisconsin the public interest takes a back seat to partisan politics as war and special interest influence peddling. We the people are collateral damage in this war. So addicted to that sick system are Madison’s power brokers that not even a global pandemic can get them to rise above pettiness, posturing, and pacification of their corporate masters. As noted in Judge Dallet’s dissent:

It is clear that a majority of this court has no appreciation of the consequences of doing the Legislature’s bidding in the midst of a pandemic. The Legislature has always had the power to act, but would rather ask this court to do so to avoid political fallout. Unfortunately for Wisconsinites, this court took the bait.

And I would add that they dishonored the memory and legacy of Fred Korematsu in doing the legislature’s bidding. Shame.

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About Author

Tony Palmeri

Tony Palmeri is a Professor of Communication Studies at UW Oshkosh. He teaches courses in rhetoric and public advocacy, freedom of speech, the rhetoric of rock and roll, and the communication career capstone. He maintains a blog called "Tony Palmeri's Media Rants." Tony served two terms on the Oshkosh Common Council and ran for state legislature in 1996 and 2004. You can find more information about him at www.tonypalmeri.com

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